Legal Case Summary

We'll hear argument this morning in case 17, 17, 17, the American Legion versus the American Humanist Association and number 18, 18, the Consolidated Case, Maryland National Capital Park and Planning Commission versus the American Humanist Association. Mr. Cotiel? Thank you, Mr. Chief Justice, and may it please the Court. There are four important facts about the memorial at issue, the Peace Cross, that explain why it should not be dismembered or destroyed. First, families in the Legion built it 93 years ago to commemorate 49 brave souls who gave their lives in World War I, and it has stood for since that time without challenge. Second, it's no ordinary cross. At its center, in its heart, is the American Legion symbol, its gigantic. And at the base and four cap-a-huge capital letters are words, valor, endurance, courage, devotion. Third, not a single word of religious content appears anywhere, rather the base has a nine-foot plaque listing the 49 names with an inscription to them. And fourth, the monument is situated when veterans memorial park alongside other war memorials. Do you know how many other parks are like this one? I've looked at pictures and this is an unusual park because there's major highways dividing it up. It's almost as if the city artificially designed an area that's huge. So, encompass other plaques and declared it a park, but you can't really tell that this cross is with anything else. There's three or four, six-lane highway on one side. There's another highway on the other. I'm told you can't even get off the highways to walk to this cross. So, I don't know. You actually can. I've done it. There's parking and so on. So, I disagree with that representation. The Veterans Memorial Park has been there for a long time. The record shows at least since 1983. So, this isn't like McCreary in which there's some pretextual stuff added later. All right. And you said dismember or destroy. You can move it. You could transfer the land to private entities, correct? Well, you could. Those would be hypothetically possible, but the record shows destruction and anything else. Well, Justice Ocho more the record. This is a Court of Appeal Dependix, Joint Punic 623 and 1585. Say, if you move it because of the cracks in this cross, it very well may be destroyed. And so- You can give it back to the Legion. And give it back to the Legion as our petition reply brief at page 12 points out, they have an email in this case saying they know that Maryland can't do that because of the traffic concerns. They can't give it to a private entity. The Maryland brief before this Court also makes it- They can speak to that. But putting that aside, are you relying on the fact that the government that, at all, that at least one brief claims that all 49 soldiers named on this plaque or for whom this plaque were were Christian? Not at all, Your Honor

. We think this memorial from start to finish has been about honoring those 49 plus all world were veterans. Is it- Are you just grandfathering this or are you claiming that today, let's say for the Vietnam War that any government, local or state, could build across 40 feet high, not put any emblem on or some sectarian emblem and say we are dedicating this to all the soldiers who have died in Vietnam War. So we're not at all saying that grandfathering or anything like that. This case, because of its 93-year tradition, is an easy one. And for reasons Justice Breyer said- I'm not going to put an answer on my question. What is the tradition? Is the tradition that in World War II, across was used or is the tradition that the government can put up sectarian symbols like crosses or a picture of Jesus Christ in honor of anyone, because that's within the nation's tradition. So Justice of the Sermire make two different arguments. One is with respect to this cross, which has stood for 93 years, 86 of them without challenge. And for reasons Justice Breyer's opinion in Van Orden said in the Borough Plurality, that would make this cross constitutional. Now your question is, well, what about this tradition of crosses in general? And it's true, we have a second argument about town of Greece, which says that if there is a long tradition of the type of displays, that would make it constitutional. Notably, however, it doesn't make your hypothetical constitutionally. Hypotheticals actually a real case. Lake County, the seventh circuit case in 1993, is a huge cross with Jesus Christ nailed in the center of it in a public park. It's been there since 1955, and it was protested right then. And the seventh circuit said that is unconstitutional, and we agree. What would happen if all the facts that you gave were the same except for the 93 years? In other words, a community decides for whatever reason we don't have a World War I memorial, we want to put up exactly this to memorialize the war dead from World War I, but now. Right. So if it's a war memorial, we do think that it would be constitutional. We think that there might be some skepticism. You just want to make sure that it wasn't a pretext, and it didn't look like that cross as I was describing about Lake County. But if it was a cross like this one, same facts, Justice Kagan, we do think that would be And does that answer apply not just to memorials for World War I soldiers, but to memorials for soldiers from any armed conflict? Well, I think that it probably would, that there's a tradition of using these crosses with respect to any conflict, but it would have to look like this one. Mr. Kachel, what about not a World War or any World Memorial, but a memorial to a tragic event? Let's say a mass shooting at a school could the local community then decide it wants to put up across in front of that school to honor the children and the teachers who died in the mass shooting? Well, I think the test, Justice Ginsburg, would be whether there is an independent secular purpose. So take a real case like the one that came out of the World Trade Centers, the second circuit case from 2014, where two steel beams were discovered in the rubble, and they were put up in the shape of a cross. Now, if that were in a public park, I think that that would be permissible because it has independent historic value and independent secular value, showing values of resilience and courage. I think the temple was nothing that was found in the rubble. It's just the local community decides it wants to honor the dead in this terrible tragedy. Right. The test would be whether or not there's an independent secular purpose. I don't think you could probably harken back to the same tradition that you could with respect to, for example, these World War I crosses the earthlanders. So the purpose is to honor those who died in the tragedy. So yes, so no. Could you? But I don't think purpose is what the Court's decisions turn on. Van Orden, the Bono plurality say that it's objective meaning. I thought you just said that the test is whether there's a secular purpose. And an objective meaning, I'm sorry, Mr. Chief Justice, the test is your opinion that you joined in Bono said, what is the objective meaning of this display? Now sometimes purpose is relevant to that and the Court has looked to it, but the test is always that

. Well, that would be okay then. It would be okay to put up in front of the public. Well, I think we need to know more about the facts of that particular hypothetical. Well, here are some facts, Mr. Codjell, from that hypothetical. And you can understand how something like this can come about that people want to memorialize the dead and in one religious tradition and a dominant one in many, many communities of this country, the preeminent symbol to memorialize the dead is the Latin cross. And so they gravitate toward that symbol as a way to memorialize the dead. But at the same time, for members of other faiths, that symbol is not a way to memorialize the dead and does not have that meaning. So I think that the question that Justice Ginsburg is asking, you know, for many people, this is a very natural way to do exactly what they want to do for others not. And Justice Kagan, if it does have the same hallmarks as this type of cross, we think that that would be permissible. That is, and I think that's a natural consequence of what this Court's already said in Bono and the plurality and the Van Warden opinion. I thought I read your brief to put a lot of weight on the fact that the cross here has more than a sectarian meaning because, as your history sets forth, the cross was a symbol throughout the battlefields in World War I. Now, I'm wondering why that doesn't limit your argument in so that in such a case as Justice Kagan hypothesized, you would not accept that. Mr. Chief Justice, we certainly agree that all of that tradition, the fields of flandered stuff make this a very easy case, and we don't think you need to go further than this. And in the field of flanders, are all of the graves marked by crosses? Are they not graves marked by stars of David? Certainly are some, but I think the dominant image of the time, everything from that poem to art to the war bond advertisements that the United States government put to the 1924 Congressional Resolution, all did use this cross. And that's why we agree Justice Ginsburg. And I believe that some of those battlefields and there are stars of David's marking the graves of Jewish quite olders. Quite true. We're not disagreeing with that. We're just saying that here, and this is what the Bono plurality recognized and Justice Alito's separate opinion, that there is a secular meaning with respect to these parts. What do you say to the Jewish war veterans brief that say, and for those Jewish soldiers, the government's decision to honor only the salvation that Christians believe is hurtful, wrong, and not in keeping with the promise of the Constitution? What do you say to them? I'd say three things, Justice Kavanaugh, and then if I could reserve the balance of my time. The first is that factually, one of the main proponents and profundraisers of this particular cross was Jay Moses, Eldavitch, who himself was a Jewish veteran. Second, there's a contrary tradition that the retired flag officers brief at Page 9 says that some Jewish vets were actually put and buried under the cross and wanted to be. And third, I don't think this Court has ever adopted the view that if some people disagree with something, that that itself creates an establishment clause violation where the test is objective. If the chief would permit me, there is a brief here that says that to deeply religious Christians secularizing the cross is blasphemy. Christ died on the cross. He was resurrected from his grave. So those people don't view secularizing the cross as something, it's not just Jewish people or Hindu people who might be offended. It could be Christians as well. Justice Simeyer, may answer be the same as the third part to Justice Kavanaugh. I don't think we let those objectors dictate that. If that were the rule, you'd be tearing down crosses at Arlington Cemetery and nationwide. The US brief at Page 29 says that. And I think that would actually inject this Court and create more of an establishment clause problem and so religious divisions. Thank you, Council. Mr

. Carvin? Mr. Chief Justice, may it please the Court? Well, the Peace Cross should be upheld under any sensible establishment clause analysis. We submit the Court's denitalized and under the town of Greece coercion test, which prohibits tangible interference with religious liberty as well as proselytizing. For a number of reasons, we think this is the simplest route. You would simply extend town of Greece rule for religious speech to symbolic speech and would provide in a situation where the chances for coercion and proselytization are much less than in the communal prayer. Mr. Carvin, could you explain? You have this coercion theory that you think you are urging us to adopt. But if that's what the establishment clause prohibits, only coercion. How does this offer, how does this office differ from the free exercise clause that is, can you suggest a practice that would be unconstitutionally coercive under the establishment clause and yet be inoffensive under the free exercise clause? Yes, Your Honor, forcing us to pay three pens to a minister. That wouldn't violate my negative liberty not to support a church I don't want to, but it wouldn't violate any religious tenets for my ability to pursue the religion I do want to. So, it creates a negative liberty not to support coercively religions which you do not support. I would also point out that the standard is completely the correct one under the text and history of the establishment clause because when they were discussing all the hallmarks of establishment, what they were talking about was tangible interference. It also extends to proselytizing under this court's decisions in both town of Greece and the Allegheny County descent, which is what we're asking for. What counts as proselytizing? I think I understand what coercion means better than what proselytizing means. Well, I think there's actually very straightforward. The definition is preaching conversion. The lower courts have said this is aggressively advocating conversion from one sect to another. What's the difference between that and an endorsement? Well, there's a lot of difference between that and an endorsement. You tell us we should abandon lemons endorsement test because it's become a dog's breakfast. Nobody knows how to apply it. The circuit courts are confused, you tell us. And then you replace it with coercion, but now maybe proselytizing in the reply brief. I don't see the delay between proselytizing an endorsement. Can you help me out? We think there's a fundamental difference just as coercion. Under our test, all symbolic, including sectarian symbols would be presumptively valid except in the rare circumstances where they've been misused to proselytize. Whereas under the endorsement test, all the forms of city are unconstantly. So, suppose a city erected across not for purposes of memorializing the war dead or, but just to emphasize the values of Christianity. Would that be proselytizing or would that not be proselytizing? I think again, that stays very close to the hypothetical that Justice Kennedy put the Allegheny County descent where you've got a permanent Latin cross on top of the. Right. This one is not on top of City Hall. Yes. This one is, you know, in a park. Oh, well, then I think it's very much like Pannette. If they've got other symbols there and they, and they, and they, and they, it's just across. This is, they want to emphasize the values of Christianity so they put up across. I think it'd be a very rare case where unless you were sort of conditioning access to government services like one on City Hall would certainly suggest that that would either constitute de facto establishment or de facto coercion. And I don't think the other side can provide a real world hypothetical involving a cross that could be misused for proselytizing purposes, which is why I think the endorsement standard is so

. So what I was trying to suggest was that this was something that indicated that the city was aligning itself with one particular religion. We're putting up across. We're not putting up any other religious symbols because we believe in the values that the cross indicates. But it's, it's on top of City Hall. It's on the street. It's in a park. Maybe there are two crosses. Maybe there could be ten crosses, you know, different parts of the city. But that's why the city is doing it. And of course everybody recognizes what a cross is. Right. It's a relatively straightforward inquiry, Justice Kagan. Is there a legitimate non-proselytizing purpose that that concern? Again, in these circumstances, I need to know, was this, for example, suggested by people who were honoring the victims of the school shooting? Was it simply, what was the genesis? You need to look at it. It's just a cross. It really is. So it's, it's, you know, these values are important to this community, the values of Christianity. So we would like to put up some crosses around town. Oh, again, if that's the, if that's the announced purpose and effect of aligning ourselves with Christianity, then I would think it would be. Well, suppose that's like a cross in the town. Suppose after this case, the highest fill puts up a cross and College Park puts up a cross and the surrounding communities put up crosses and they, there's mixed purposes. Some people do it because they want to support it because they want to celebrate Christianity. Some people do it because they say we want to celebrate war dead. There's mixed purposes. Prosilitizing or not prostitutizing? Yes, I think sectarian symbols are presumptively valid, Justice Kagan, or a presumptively valid and can, that presumption can be overcome when. Again, if you show that there isn't a legitimate non-prosilitizing, that's absolutely. I was just going to say you start out with what you advertise as a pretty concise test. But it generates pretty quickly into, well, I need to know about this, I need to know about that and becomes kind of a fax-specific test rather than the CRISPR one that you propose in your brief. No, no, we could have a bright line test that only formal coercion is prohibited. But I don't think that would satisfy this Court because the dangers of the establishment clause posed by coercion, which is tangible threat to liberty, could be reached indirectly through the sorts of things I'm talking about. And it is true, of course, that every test that this Court adopts needs to focus on contest purpose and effect. But the key point is you're asking a different question than you are under the endorsement test. Well, I don't ask that. That's what I just stuck. And to say I endorse something, what's the difference between saying I endorse something and I prostitutize or promote perhaps another synonym, something. It seems to me that you are taking us right back to the dog's breakfast you've worn us against. And I do understand the coercion test, but I don't understand your abandonment of it. Fair enough

. In God we trust, certainly promotes religion, endorses religion, no question about it. But it's not an effort to prostitutize. Justice Scalia once asked a question when somebody gave that example. He said, what would happen if a coin had said, in Jesus Christ we trust? And again, that's actually a very nice illustration of the distinction. One day one we've got in God we trust, which is promoting endorsement religion and is no good under the lemon test. One day two we've got in Jesus we trust. What message is the government sending? You can't trust this Jewish God. You've got to take sides in a sectarian dispute where Jesus is the one we're doing. And if they are taking sides in a sectarian dispute, as Justice Scalia pointed out, that's precisely the definition of what constitutes and establishments. Why am I not prostituting religion when I say in God we trust? But I am when I say in Jesus Christ we trust. I'm just prostitutizing religion in a more generic sense. That's fair enough and I think Justice Scalia would respect us. No, but what's the difference between promoting religion versus e-religion and promoting one sect or another? Which I think the sectarian point would obviously lend itself to prostitutizing. In this context I do want to emphasize that all symbols are sectarian. There's no such thing as a non-denominational. What's your answer to the cross on City Hall? I didn't get whether your answer is that's unconstitutional or constitutional. Again, we're seeking to have this Court adopt Justice Kennedy's descent in Allegheny County. And in that descent he said that a cross on City Hall would be unconstitutional. Because it's because it's because it's because it's because it's prostitutizing and we certainly do agree. I think in all of context you need to be careful if it was last crusade in New Mexico. And again, there was a legitimate non-prostitutizing reason for the permitting cross than but as a general matter, sure. If they're putting up crosses at every courtroom, every DMV window and all the parade of hypotheticals we've gotten on the other side, I can certainly understand why somebody would believe that they're trying to convert you to Christianity. After all, the hallmark of the establishment and professor McConnell's article, which we're largely relying on, is to seek into and co-cafe these certain religious beliefs, a certain sectarian belief. Well, but if you look at his, of course you have, his brief highlights, six things that you say would be, and it starts out with the government establishing a church. Right. All right, we'll give you that. Right. You know, the requiring people to pay for the church, prohibiting imposing burdens on people who don't believe it. I mean, all pretty stark items that certainly underlay the establishment clause when it was adopted. Yes. But you're certainly, I don't understand your position to be limited in that way. Again, we could certainly say that kind of direct formal coercion is the only thing reached by the establishment clause. Both of the opinions we rely on, town of Greece and Allegheny County, go a bit further and they say in the real world we want to make sure we're not creating the same dangers when the government is trying to create indirectly what it couldn't do directly. Again, this will be a rare exception and they can't provide a real-world hypothetical process. If the court doesn't want to go that far. So we go back to Justice Gorsuch. I hear you using the word de facto, extreme prosolization de facto coercion

. Excessive promotion of prosolization. It is the endorsement test. Again. Now, you may make an argument like your colleague that this has to do more with tradition than it does with coercion, but it is endorsement. To make it as simple as I can. Under the endorsement test, a sectarian symbol of a crush is no good. Under our test, it's perfectly fine because it's the key. So you would return allahenium there, that theory? I would endorse the town of Greece test, which says sectarian prayer. Purely sectarian prayer is okay. Sectarian speech and the stylic. But we teach in the stylic. Excuse me. You endorse the test, you prostitize for it. We are actually adopting the word prosolized from the town of Greece test. And again, my final point on all of this is, in the symbolic context, this distinction is not of real world consequence because all symbols are sectarian. And if you ban sectarian symbols, then you are necessarily banning all religious symbols, which evinces hostility and is in stark tension with the free exercise and free speech clause. Thank you, counsel. General Powell. Mr. Chief Justice, and may it please the Court, three points. First, under town of Greece, the memorial cross is permissible because it falls within our nation's long tradition of accommodating religious speech or symbols in civic life. Second, adhering to town Greece would easily resolve all places, meaning I don't know of a founding father, town or state, that put up a 40-foot cross on government property. So we don't have a long tradition of that. It's sectarian. We have a lot of founding fathers, including George Washington, who is exceedingly careful to ensure that references to God were as neutral as possible to as many religions as possible. So it can't be that all sectarian symbols, whether it's a cross or Jesus Christ or some other symbol, is within our tradition, merely because we say in God we trust. Well, two different, two things, Justice Sotomayor. First, obviously this symbol has a unique history as the Bono Plorality detailed. The VFW brief, I think, does a nice job of this, that to the World War I generation, though it's now distant in time, that was a secular or civic meaning that it's according to that generation. But you limited your point to one generalized point, which means we could put it up today to memorialize all the at-n-n-vets, despite the fact that all the at-n-vets were not Christian, and that many of them would feel. Yes, just as Mr. Catchell said, when they found the cross at Ground Zero in the rubble, and that became a makeshift shrine in the weeks after 9-11, I don't think that that violated the establishment clause, just as it doesn't now when it sits in the 9-11 museum owned by the Port Authority. But the second point I'd make is, I understand town of Greece and the Allegheny County descent to say, you either trace a practice back to the founding, or you look to see whether it's akin to the kind of acknowledgments that the founders and the early generation thought were permissible, and you ask whether it presents any greater dangers than that. Here, crosses have been memorials since before the founding. They have been war memorials since the post-civil war generation that incorporated the change from the founding. This was almost an overwhelmingly Christian country. But now we're told that 30 percent of the U

.S. population does not adhere to a Christian faith. Does that change make any difference? I don't think it affects whether the cross took on in the wake of the Great War a secular meaning, and whether that's the meaning for which the mother's erected it and the commission now maintains it. So when Canada gave us the Canadian Cross of Sacrifice to honor Americans who went north and joined the Canadian forces to fight in the war before America entered, I had no reason to believe that all of those Americans were Christian or that Canada thought they were, but it thought that across with a sword running down it in Arlington would commemorate all of them. And I think that's the meaning that the Bono Polar outy correctly said in that context. That symbol here. So the military is substantially different in the middle of a town where something is 40 foot high. Well, I mean, I have pictures of this cross. It's the only thing that's that high. It dwarfs buildings. It dwarfs people. You can barely see them in the pictures. I mean, with all our success in a similar way, and obviously this is more under the reasonable observer test, and we've asked the Court to apply town of Greece. But having been out to the site, it is certainly a tall cross. But it has words on it that are visible from hundreds of feet away that are secular words. It's in the midst of a number of other memorials that you can see. It's been part of a memorial part for decades before litigation was ever brought. I understand the concern if you just look at the size, but that ignores the fact that there's U.S. embossed sides of the cross, the words, the plaque, all of the cross around the context. Where you want to draw the line, just take a lot, I'm going to give you an example of a bunch of different crosses. So one is World War I cross, erected many, many years ago. Another is World War I cross, erected now. A third is another war memorial cross. A fourth is a memorial cross that has nothing to do with any war. A fifth, and we up to five, a fifth is not a memorial cross at all, just a cross. It's a cross because a community wants to put up a cross. Are they all okay or some not okay? I think the first three are clearly permissible, assuming the fourth acknowledges the non-war purpose to which the cross is put. So the cross that commemorates the school shooting or the star of David that commemorates the Holocaust, that seems to us perfectly permissible, no more coercive or proselytizing than things that the founders thought were perfectly permissible. The last strikes me as potentially quite problematic. When Justice Kennedy says in Allegheny County and the court picks up on an entire Greece that you can't proselytize, it understands that, Justice Corsuch, is a much higher standard than even if all five are excluded. It understands that as, are you threatening damnation, the court says, are you trying to force people into the pews? Are you denigrating another faith? If a town just starts putting up naked, unadorned crosses without any clear second reason. Excuse me, all five crosses in Justice Cagan's hypothetical, I believe, are the same. Well, no, sorry. I took the purpose articulated, unstated or stated, but not visible, might be different, but the crosses are all the same. And you're saying it depends on the implicit purpose or reason it was put up. Maybe I misunderstood the hypotheticals

. When Justice Cagan was positing warm memorials or a cross dedicated for some of their secular, civic reason, all of the examples in the real world I'm aware of make that clear in some way, the argon cross us to those who perished in France. I took the fifth one to be the naked, unadorned cross, and that seems to me to get So, if that's put up as a warm memorial, but it doesn't have words around it, that has to come down. Justice Cagan, I'll grant you that that's the hardest case and where the town just says, we're putting it up as a warm memorial, it may be permissible as long as the other side will grant that all of the hard cases on this test are imaginary. You can't find a single one that looks like that. A problem with the current law is that all of the current cases are hard. This case, which should have been easy, has a four volume J.A. We had expert witnesses and mounds of discovery. Could you take the examples I gave that are neither the first nor the fifth. In other words, just the memorial crosses, but not any particular relationship to World War One. And erected now. On what theory are those permissible? In other words, when, when, is the theory that this is a universal symbol, is the theory that this is a secular symbol, is the theory that this is a religious symbol, but that's perfectly fine to adopt one religious symbol rather than another? What's the theory? I think the theory is, and the real world example I'd give is the cross at ground zero. I'd point the court to the second. I think that that's an odd kind of case, so I think let's not talk about that one. Let's just talk about your ordinary decision to erect to, you know, not anything that's found in a, let's just talk about it. My point is that's an municipal decision to erect a cross as a way to memorialize some group of citizens. And my only point was, there aren't a lot of these warm wheels going up. That's a new cross that I think was perfectly permissible because it presents no greater dangers than the kinds of acknowledgment of religion that have existed since the founding. But if you took a new warm memorial, if Bladenberg tomorrow wanted to erect a memorial like this one, we think that'd be perfectly permissible and indeed an honorable thing for a locality to do. And I guess I asked why is that? Is it because the cross has become a symbol that's universal? Is that what your claim is? I think because as the Bono Plurality said, it has taken on a secular meaning associated with sacrifice or death or commemoration and a locality, a state can decide to use it for that meaning. I mean, it is the foremost symbol of Christianity, isn't it? It invokes the central theological claim of Christianity that Jesus Christ, the son of God, died on the cross for humanity sins and that he rose from the dead. This is why Christians use crosses as a way to memorialize the dead. Is it because it connects to that central theological belief, isn't that correct? So I'm not going to dispute that obviously it's the preeminent symbol of Christianity. I believe all of the members of the Plurality and Bono believe that too. The question is whether it's also taken on a secular meaning because to say the cross has only that religious meaning. I think would condemn every cross in the public sphere, including the ones that sit in Arlington, which even respondents say we don't have to take down. So we know that context has to matter. That doesn't matter in this particular case that this cross was put up to commemorate the deaths of 49 real people and that this was done in the wake of World War I. I think Justice Alito, it makes it an easier case, but what I would say is we have four basic buckets of litigation over displays in the State and Federal courts. You've got warm memorials, tank amendments, holiday displays, displays, and other forms of symbolic expression like models or seals. I don't think the reasoning here is specific just to the cross bucket, though I do think it would take care of the vast bulk of warm memorials that are being litigated. I think the logic of town of Greece that we're urging the Court just to apply in this related context is do any of those present greater dangers than the acknowledgments of religion in the public sphere that have existed since the founding? We would say that because they do not, we would ask the Court to allow the cross to remain and to allow those at honors to rest in peace. Thank you, General. Mr. Miller? Mr. Chief Justice, and may it please the Court. I think we can all agree that the establishment clause at the very least prohibits the government from preferring one religion over another religion

. And the commission is arguing essentially that its cross does not violate the central command of the establishment clause because it's essentially a non-religious, non-Christian symbol that honors everyone irrespective of their religion. Yet I don't think anyone here would deny that it would be unconstitutional and inappropriate to go into Arlington and place a Latin cross over the grave of every person there, every fallen soldier, irrespective of their religion. In fact, in 1924, everyone in the congressional debate about the overseas markers was in agreement that it would be completely inappropriate and even sacrilegious to put a cross over the burial of a Jewish fallen soldier. But the commission is here arguing today, as well as the other petitioners, that it is telling Jews, telling Muslims, telling humanists that the cross honors them when they emphatically say it does not, and is telling Christians that they are most preeminent and sacred symbol of Jesus Christ, actually in fact also symbolizes atheism. Can I ask a question that picks up on a question that Justice Ginsburg asked earlier? So let's say there is a shooting at a church and Christians are targeted and killed. There is a shooting at a synagogue and Jews are targeted and killed. There is a shooting at a mosque and Muslims are targeted and killed. In each case, the town says, we are outraged by this. We want to put up a monument to express our sympathy and solidarity with the families and with the communities that they represent. They ask those people what kind of monument would you like? And they all say it's very important for us to put up something of religious significance. And the town does that. Those towns do that. Would that be a violation of the establishment clause? Your Honor, I think it depends, of course, on the context. But I think, for instance, if we are talking about a 45 foot cross in the middle of a roadway, I think that that would be a problem. If it's like an obelisk with maybe a star of David that's not as loud, you know, not, we're actually trying to, you know, I think the commemorative purpose would need to predominate over the sectarian. Well, that raises for me, that answer raises for me a question about standing. Is it too loud? Is the star of David too loud? Is it too offensive? There aren't many places in the law where we allow someone to make a federal case out of their offensiveness about symbol being too loud for them. We accept that people have to sometimes live in a world in which other people speak of them. We have to tolerate one another. This is the only area I can think of, like that, where we allow people to sue over an offense because for them it is too loud. And we get into, as a result, having to dictate taste with respect to displays. We have a ten commandments display just above you, which may be too loud for many. Why shouldn't we apply our normal standing rules and require more than mere offence to make a federal case out of these? Yes, Your Honor. Well, I don't think that it's mere offence. It's about being a citizen in your own community. And it's not private speech we're talking about. We're talking about the government being the speaker and essentially giving you the message as the non-Christian in your community that you are a lesser citizen. And I think if you look at our record and the letters that were sent to the commission by self-proclaimed Christians that were outraged by the notion that their cross must have to be, you know, removed, you see that monuments like this sort of contribute to the idea that non-Christian are inferior. You know, we are Christians. We can put across wherever we want to. Well, to follow up on Justice Gorsuch's question, what if you had one letter from one person who purported to be offended by it? Would that be enough to support your argument? Well, no, Your Honor. I think it would have to be that you are a member of the community that you witnessed the, you've had the encounter. I mean, there's no, you know, Valley Forge says that you can't be someone in another state that read about it in these papers. You have to be personally affected by the message. And if you are a citizen in a community, you are usually, you know, within the zone of interest of someone that would take offence or feel marginalized by the display. And here, all of the plaintiffs are individuals who are non-Christian who say that when they encounter the government symbol saying, you know, that Christians have valor, Christians have courage, Christians have devotion, Christians have endurance, those words on the base, that says something to them. And I think, you know, when you look back at the record in 1920s, you know, Jews were fighting immense discrimination

. A lot of them joined the war, you know, to combat the stigma that they were considered cowards. And I think one of the Amicus briefs even had a letter from a Jewish soldier who had to put on his own Russia Shana because they wouldn't accommodate the Jewish soldiers with their own. I mean, this would be a different case if some of those 49 soldiers whose names are associated with this monument were Jewish, or Muslim, or a member of some other non-Christian faith, and the town insisted on putting their names on a monument in the form of a cross. But there's no evidence that that's what happened here. Is that right? Two things, Your Honor. One, we don't know the names. We don't know the religious beliefs of those on the cross. What we know is that there's about 14 of them, seven of whom are buried in Arlington, that do not have a cross on their heads, don't even know Arlington had the cross as an available. All right. Well, it's speculation, but we don't know that there was anybody who objected, that there was any family who objected to having this form of a memorial where their fallen family member, do we? I think there's an inference that can be made from the fact that the government's records refer to 52 to 54, Prince Georgians who died in World War I, and they only have 49 names on the cross. But I would also submit that the government is basically forfeited that argument by having this elaborate and public rededication ceremony to rededicate the cross as a memorial for all veterans of all wars. That's how the town's treated it. The commission's here today saying that this isn't everyone memorial for me. I mean, there are cross monuments all over the country. Many of them quite old. Do you want them all taken down? No, Your Honor. And I actually would submit that there's a lot of exaggeration and distortion going on. I think there's- So which ones do you think can stand? Well, certainly the two in Arlington. And there's several reasons. One is that much like, you know, much like the practice that was in town of Greece where the town created a, you know, forum for private citizens to deliver prayers of their own idiom, there is a statute that governs monuments in Arlington that says that it basically creates a non-descript military, religiously neutral opportunity for people to place their own monuments in Arlington, subject to a lot of rules, but two of which are the- That's the way this sort of thing is being handled today in a pluralistic society in which ordinary people get along pretty well and are not at each other's throats about religious divisions. But let me ask you about some others that are not in Arlington. How about the Irish brigade monument at Gettysburg? Put up in 1888. Yes, Your Honor. Well, it's one of, I think, something like 3,000 monuments within Gettysburg Park. It presents itself as almost an object in the museum. And it's not to say that museum context can always negate the governments in her manner, but it seems in that context that government is more like a curator of a museum than it is putting it up. I mean, remember, this was put up by the town of Bladenberg. May I ask about this cross? I was just going to ask, and I understand Native American totems have spiritual and religious significance. If one of those is on a federal property, does it have to be torn down? I would say no, Your Honor, but I would think that we need some sort of expert testimony to sort of talk about what that means. I think in common. It has spiritual and religious significance for Native Americans, similar to, let's say, religious symbols, the star of David across. It's difficult. I know that the Ninth Circuit had a case that dealt with an Aztec, an ancient Aztec symbol, and they concluded that it didn't violate the establishment clause. In part, because no one would reasonably think that the government that was predominantly, I think, Christian in that community was erecting, it was to commemorate Mexican culture, you know, would actually be trying to endorse the Aztec religion. So I think context would matter. I think that- So if the local government in the community were Native American, whether it's on the reservation or a Native village in Alaska, that would make a difference? You know, I think you would have to understand more about the symbolism and what it means if there is some sort of dual secular meaning, such as with the Ten Commandments, how it's basically shorthand for a lot self. So if in context, it's intended for the secular aspect to predominate perhaps, but it's hard to say what- So this is just an all-ten commandment? Oh, I'm sorry. This cross, Ms. Miller. Yes. It's very old. It was erected almost 100 years ago, right after World War I. And it does have that it's two fallen soldiers from World War I, and World War I does have this history that this is how soldiers were memorialized in World War I, and it's true not all soldiers when you go into a World War I battlefield, there are stars of David there, but because those battlefields were just rows and rows and rows of crosses, the cross became in people's minds the preeminent symbol of how to memorialize World War I dead. And then you have these other facts that Mr. Cotjell started us off with. There are other war memorials around the park. There are no religious words on the memorial, quite the opposite, or the words on the memorial are words about military valor and so forth. So why in a case like that, can we not say essentially the religious content has been stripped of this monument? Well, Your Honor, I don't think you can say the particular religious content. I don't think I'm not aware of any case or reason to say that a large Latin cross can be stripped of its religious meaning. I don't think it leads special words to announce that this is a religious symbol. I think that the- Well, hold on, just a moment ago, you told us that 10 commandments can be stripped of their religious significance and that an Indian totem pole may be stripped of its religious significance. Why-why not so too here? Well, as far as I'm concerned, I'm not aware of any secondary meaning that's derived from the Latin cross. It's meaning as a war memorial is distinctly for Christians. There is no evidence that- Well, I guess what I'm- And I really did mean to confine it to this World War I context, because I think there's something quite different about this historic moment in time. When-so, if you look- If you look at all the crosses that are war memorials, basically all World War I memorials, that this was sort of the- Because of the battlefields and the way the crosses were erected there, this became the preeminent symbol for how to memorialize the war dead at that time. Why isn't that important? Well, Your Honor, it's- It's factually speaking, the Doe Boy statue was the- By far the most common. In fact, on this record, I'm only aware of six other crosses, inclusive of Arlington, that are war memorial- World War I memorials on government land. The few others that- That they cite are actually on private land. The ones in Baltimore, for instance, one has Jesus Christ written on it. So that says to us that the same time, Williamsburg Cross was being put up- Other World War I memorials were being put up in direct recognition of Jesus Christ. That was the understanding at the time these are Christian symbols. Again, the government's argument in this case is not that this is a Christian symbol anymore, but that it in fact represents Jews and atheists and Muslims. And I think that there's no history whatsoever of anyone using land process to honor Jews, Muslims, and atheists. And as the brief of the joint Baptist community and all the other representative groups that represent millions of Christians in this country, find that argument deeply offensive and could potentially degrade their religion. I take your point that it's a religious symbol. I'm not going to dispute that at all. But our cases have upheld religious displays and religious words in cases like Marsh, the Chaplain in Congress, and the prayer cases like Van Norton, the Ten Commandments, cases like Town of Greece, legislative prayer, before a meeting. How do you square your position in this case, with those cases which have upheld religious symbols, displays, or words in government property or government events? Yes, Your Honor. I would start with Town of Greece because I think Town of Greece is about akin to, say, Arlington Cemetery as any case can be. There, the Court was saying that when the government takes essentially a hands-off position with respect to the sectarian content of the prayers, you really is not to say that it's private speech, but the government isn't being the mouthpiece for the sectarian message. When the government is the mouthpiece, when it is 100% the government- About the town that I'm starting to wrap, but the Ten Commandments then. With respect to the Ten Commandments, I realize that that is something that this Court has routinely recognized as a dual-meaning symbol. Although, yes, there are commandments that are certainly religious. The Court has seen it as something that is more acutemical, embraced, you know, as Justice

. This cross, Ms. Miller. Yes. It's very old. It was erected almost 100 years ago, right after World War I. And it does have that it's two fallen soldiers from World War I, and World War I does have this history that this is how soldiers were memorialized in World War I, and it's true not all soldiers when you go into a World War I battlefield, there are stars of David there, but because those battlefields were just rows and rows and rows of crosses, the cross became in people's minds the preeminent symbol of how to memorialize World War I dead. And then you have these other facts that Mr. Cotjell started us off with. There are other war memorials around the park. There are no religious words on the memorial, quite the opposite, or the words on the memorial are words about military valor and so forth. So why in a case like that, can we not say essentially the religious content has been stripped of this monument? Well, Your Honor, I don't think you can say the particular religious content. I don't think I'm not aware of any case or reason to say that a large Latin cross can be stripped of its religious meaning. I don't think it leads special words to announce that this is a religious symbol. I think that the- Well, hold on, just a moment ago, you told us that 10 commandments can be stripped of their religious significance and that an Indian totem pole may be stripped of its religious significance. Why-why not so too here? Well, as far as I'm concerned, I'm not aware of any secondary meaning that's derived from the Latin cross. It's meaning as a war memorial is distinctly for Christians. There is no evidence that- Well, I guess what I'm- And I really did mean to confine it to this World War I context, because I think there's something quite different about this historic moment in time. When-so, if you look- If you look at all the crosses that are war memorials, basically all World War I memorials, that this was sort of the- Because of the battlefields and the way the crosses were erected there, this became the preeminent symbol for how to memorialize the war dead at that time. Why isn't that important? Well, Your Honor, it's- It's factually speaking, the Doe Boy statue was the- By far the most common. In fact, on this record, I'm only aware of six other crosses, inclusive of Arlington, that are war memorial- World War I memorials on government land. The few others that- That they cite are actually on private land. The ones in Baltimore, for instance, one has Jesus Christ written on it. So that says to us that the same time, Williamsburg Cross was being put up- Other World War I memorials were being put up in direct recognition of Jesus Christ. That was the understanding at the time these are Christian symbols. Again, the government's argument in this case is not that this is a Christian symbol anymore, but that it in fact represents Jews and atheists and Muslims. And I think that there's no history whatsoever of anyone using land process to honor Jews, Muslims, and atheists. And as the brief of the joint Baptist community and all the other representative groups that represent millions of Christians in this country, find that argument deeply offensive and could potentially degrade their religion. I take your point that it's a religious symbol. I'm not going to dispute that at all. But our cases have upheld religious displays and religious words in cases like Marsh, the Chaplain in Congress, and the prayer cases like Van Norton, the Ten Commandments, cases like Town of Greece, legislative prayer, before a meeting. How do you square your position in this case, with those cases which have upheld religious symbols, displays, or words in government property or government events? Yes, Your Honor. I would start with Town of Greece because I think Town of Greece is about akin to, say, Arlington Cemetery as any case can be. There, the Court was saying that when the government takes essentially a hands-off position with respect to the sectarian content of the prayers, you really is not to say that it's private speech, but the government isn't being the mouthpiece for the sectarian message. When the government is the mouthpiece, when it is 100% the government- About the town that I'm starting to wrap, but the Ten Commandments then. With respect to the Ten Commandments, I realize that that is something that this Court has routinely recognized as a dual-meaning symbol. Although, yes, there are commandments that are certainly religious. The Court has seen it as something that is more acutemical, embraced, you know, as Justice. Were those statutes built by private people and placed in the parks? The Ten Commandments? Yes. I believe the Eagles was the primary donor of most of the Ten Commandments displays that issue. And my understanding, especially in reading Justice Breyer's concurrence, was that the fact that the Ten Commandments didn't predominate in the setting, you know, they weren't the largest, they were in line with all these other displays, that the secular aspect of the Ten Commandments, the one that says, you know, this is how law was founded, this is symbolic of law, predominated. But there's nothing in either the plurality or Justice Breyer's opinion that I read to say that that context can somehow strip a Latin cross of its sectarian meaning. They have 54, in the briefs, 54 examples of things that people might bring cases, and if you win, tear them down. Well, there may be more, there may be fewer. What do you think of saying, yes, look at the historical context here, history counts. And so, yes, okay, but no more. That's what Justice Ginsburg, I think, was bringing up. But no more. We're a different country. We are a different country now, and there are 50 more different religions, and therefore no more. But we're not going to have people trying to tear down historical monuments even here. Okay? Now, what do you think of that? I'm not suggesting I'm for it. I want to know what you think of it. Sure, Your Honor. I mean, I think two things. One is, again, the exaggeration of going on in the record that there's somehow 50 or hundreds. We've got all sorts of numbers of crosses that are on public land. They cite, for instance, 50 examples of something that's not across. It's a boot with a rifle and a helmet, and it's cited in the respondents, or the petitioner's rep library, the commission's rep library, if I think of page 17, they refer to a cross in Louisville, North Carolina. It's not across. They cite about 50 examples of that. They cite crosses on private land. I counted about 15 amongst the weakest briefs on private land. So I'd say there's something closer to about 10, maybe 20. And that is inclusive of crosses that are quite small. With respect to history, there are a lot of reasons why religious minorities in Christian-dominated societies would not feel safe challenging an actively used war memorial that is the town's most prominent symbol. My clients have been threatened. I've received death threats, and I bet you was not safe for 90 years ago than it was today. Also, I don't think that you can say that this is just some sort of passive display that people don't take note of. Like I said, if you look in the record, look at the letters that people, how people are processing a monument like this. Sort of like a billboard. It kind of ingrains in your mind that there's this association between having, being Christian, having valor, having courage. And what message does that sense to religious minorities and Christian, you know, members of the society that are the majority? Well, but that's one of the main criticisms of the, of the lemon test that different people are going to process that in different ways. I, I mean, you heard from one of your friends on the other side that one of the major fundraisers in this was a Jewish individual. So he was obviously processing it or anticipating it in a different way

. Were those statutes built by private people and placed in the parks? The Ten Commandments? Yes. I believe the Eagles was the primary donor of most of the Ten Commandments displays that issue. And my understanding, especially in reading Justice Breyer's concurrence, was that the fact that the Ten Commandments didn't predominate in the setting, you know, they weren't the largest, they were in line with all these other displays, that the secular aspect of the Ten Commandments, the one that says, you know, this is how law was founded, this is symbolic of law, predominated. But there's nothing in either the plurality or Justice Breyer's opinion that I read to say that that context can somehow strip a Latin cross of its sectarian meaning. They have 54, in the briefs, 54 examples of things that people might bring cases, and if you win, tear them down. Well, there may be more, there may be fewer. What do you think of saying, yes, look at the historical context here, history counts. And so, yes, okay, but no more. That's what Justice Ginsburg, I think, was bringing up. But no more. We're a different country. We are a different country now, and there are 50 more different religions, and therefore no more. But we're not going to have people trying to tear down historical monuments even here. Okay? Now, what do you think of that? I'm not suggesting I'm for it. I want to know what you think of it. Sure, Your Honor. I mean, I think two things. One is, again, the exaggeration of going on in the record that there's somehow 50 or hundreds. We've got all sorts of numbers of crosses that are on public land. They cite, for instance, 50 examples of something that's not across. It's a boot with a rifle and a helmet, and it's cited in the respondents, or the petitioner's rep library, the commission's rep library, if I think of page 17, they refer to a cross in Louisville, North Carolina. It's not across. They cite about 50 examples of that. They cite crosses on private land. I counted about 15 amongst the weakest briefs on private land. So I'd say there's something closer to about 10, maybe 20. And that is inclusive of crosses that are quite small. With respect to history, there are a lot of reasons why religious minorities in Christian-dominated societies would not feel safe challenging an actively used war memorial that is the town's most prominent symbol. My clients have been threatened. I've received death threats, and I bet you was not safe for 90 years ago than it was today. Also, I don't think that you can say that this is just some sort of passive display that people don't take note of. Like I said, if you look in the record, look at the letters that people, how people are processing a monument like this. Sort of like a billboard. It kind of ingrains in your mind that there's this association between having, being Christian, having valor, having courage. And what message does that sense to religious minorities and Christian, you know, members of the society that are the majority? Well, but that's one of the main criticisms of the, of the lemon test that different people are going to process that in different ways. I, I mean, you heard from one of your friends on the other side that one of the major fundraisers in this was a Jewish individual. So he was obviously processing it or anticipating it in a different way. Well, your honor, I think that we cannot take one person's example. Again, someone who's probably one of maybe the only Jewish people in that county at a time when there was an act of clan, burning crosses, burning Jewish buildings or Jewish, you know, businesses. At a time when atheists couldn't run for office, Jews had to swear that they believed in after life in order to qualify. I mean, I can't imagine anything. I mean, I don't know if that worked. There were 12 African-American soldiers among the 49. I believe there are, and I believe that the, the, the situation of, of African-Americans and Prince George's county at that time was worse. It was better than the situation for Jews. Here's what I'll say to the plaque. The, the names that are on the plaque are the same names that are put up on the one in Upper Marbouille. I don't believe there's any evidence that the town of Bladensburg knew who was on the cross. About a third of the men actually have no apparent connection to Prince George's county. They named some guy in, like, Philadelphia who had no connection here. So I don't know how they got the names there. Mr. Miller, I've been struck some of these questions about how people process these symbols and what messages they convey. Did you sort of accepted this idea that that's what we should be thinking about? But why isn't it enough to just say, does erecting a symbol like this align the government with a particular religion and not align it with every other religion? That's right, Your Honor. That is actually more the test that we put forth in our brief. We notice, notably, don't use the reasonable observer test. I think the reasonable observer test in some situations might be helpful, especially when you need to put yourself in someone else's shoes. But it's really just a proxy for facts. We're saying, look at the facts. There is a 40-foot cross. It's in the middle of the highway. It dominates all the other newer displays that the city has put up or the town's put up recently. There's bushes obscuring the plaque. There are no walkways, by the way, to the cross. You have to risk life and limb to get over the lanes of traffic. You do suggest at various points we should consider how people process things and whether they're offended and elsewhere you don't. And I guess I am curious in response to Justice Kagan. You say, we shouldn't apply the lemon in this case. It's been a long time since this court has applied lemon. But yet the courts of appeals continue to cite it and use it. And their reasonable observers process things in all sorts of different ways. And it resulted in a welter of confusion, I think, by anyone's admission, including your own. Is it time for this court to thank lemon for its services and send it on its way? No, Your Honor. I do not think so

. Well, your honor, I think that we cannot take one person's example. Again, someone who's probably one of maybe the only Jewish people in that county at a time when there was an act of clan, burning crosses, burning Jewish buildings or Jewish, you know, businesses. At a time when atheists couldn't run for office, Jews had to swear that they believed in after life in order to qualify. I mean, I can't imagine anything. I mean, I don't know if that worked. There were 12 African-American soldiers among the 49. I believe there are, and I believe that the, the, the situation of, of African-Americans and Prince George's county at that time was worse. It was better than the situation for Jews. Here's what I'll say to the plaque. The, the names that are on the plaque are the same names that are put up on the one in Upper Marbouille. I don't believe there's any evidence that the town of Bladensburg knew who was on the cross. About a third of the men actually have no apparent connection to Prince George's county. They named some guy in, like, Philadelphia who had no connection here. So I don't know how they got the names there. Mr. Miller, I've been struck some of these questions about how people process these symbols and what messages they convey. Did you sort of accepted this idea that that's what we should be thinking about? But why isn't it enough to just say, does erecting a symbol like this align the government with a particular religion and not align it with every other religion? That's right, Your Honor. That is actually more the test that we put forth in our brief. We notice, notably, don't use the reasonable observer test. I think the reasonable observer test in some situations might be helpful, especially when you need to put yourself in someone else's shoes. But it's really just a proxy for facts. We're saying, look at the facts. There is a 40-foot cross. It's in the middle of the highway. It dominates all the other newer displays that the city has put up or the town's put up recently. There's bushes obscuring the plaque. There are no walkways, by the way, to the cross. You have to risk life and limb to get over the lanes of traffic. You do suggest at various points we should consider how people process things and whether they're offended and elsewhere you don't. And I guess I am curious in response to Justice Kagan. You say, we shouldn't apply the lemon in this case. It's been a long time since this court has applied lemon. But yet the courts of appeals continue to cite it and use it. And their reasonable observers process things in all sorts of different ways. And it resulted in a welter of confusion, I think, by anyone's admission, including your own. Is it time for this court to thank lemon for its services and send it on its way? No, Your Honor. I do not think so. I think there is a difference between lemon and the reasonable observer. The reasonable observer is an overlay that comes from Justice O'Connor, who's trying to acknowledge and reconcile the complexity of the cases. And I think the reasonable observer is one that- But if you don't find it useful in this case, and you don't want the court to apply it in this case, what about all those poor court of appeals judges who are left still with confusion? We haven't overruled it, but we never use it anymore, except for when we might have 25 years ago. And I think a majority of this court, they'll never at the same time, has advocated for lemon's dismissal. So what do I mean? Is it really fair on the lower court judges struggling to apply this court's dictates if we don't provide an answer on lemon? On the contrary, Your Honor, I think that lemon is very useful. I think when you heard the arguments earlier today, they talked about context, they talked about purpose, they talked about effect. That's the crux of lemon. I don't think that- But how can it be useful when we haven't used it in the most important cases that are on point here? Cases like Town of Greece, it's not used. Van Oorden, Marsh-V-Chamberts. Those are the cases that are on point. They just go back 40 years, and we haven't used the test, and to justice courts, such as Point, the lower courts need some clarity about that. If the test isn't being used, that would suggest that the test doesn't work for this context. Your Honor, I would submit that the court really hasn't had the proper opportunity to apply lemon since Van Oorden, although remember that Van Oorden was decided- Well, Town of Greece was certainly a case, and that's about prayer before a legislative meeting. Well, Town of Greece was- was extending Marsh, which had a jettison lemon, but there's- But the court comes back to saying in, for instance, Trump versus Hawaii, that reiterating the large- the Larson test, which is that, you know, the clearest command of the establishment clause is one denomination can't be preferred to another. And that case relies on lemon. But more importantly, I think that, like I said, I think everyone agrees that purpose and effect our critical inquiries under the establishment clause, they long predated lemon. I think there was something like 14 cases pre-lemon that were purpose and effect cases. Lemon just enshrined those out of the third from Waltz about the hanglement. I think you alluded to this earlier, but I wanted to ask it so I'm clear. The distinction between the 10 commandments and the cross. Is- is too full? One is that it has this dual meaning as, you know, a symbol of law. And so when it's conveyed, say, for instance, you know, alongside, you know, Moses with 18 other lawmakers, the clear effect is, or impression is this is a law symbol. When it's displayed in isolation, or is for one denomination, I think Justice Spulia had a lot of good points about this and his McCreary descent about how he perceived the 10 commandments as being for embrace by Judaism, Islam, and Christianity. But for instance, if it was just the Christian version, which I'm not sure what that looks like, but assuming such could be the case, that might be a problem. Well, the reason why we say the Court doesn't need to reach lemon in this case is because there's a, there's an easier route, and that is the notion of one religion over another can't be preferred. Well, along those lines, would it be a violation of the establishment clause for the state to promote secularism or humanism as opposed to religion? Humanism, yes. If the government decided to put up a giant happy humanist symbol, that's our, it's like this man with little hands, if they decided to replace the cross with the happy humanist, 40 feet tall, and they said, this is the humanist monument, I think that would be a problem. Well, let me take you back to Justice Breyer's question, which is an interesting question to me, and your response was, he's wrong on the numbers, but I don't know, I've got pictures of lots of crosses that are on public land. So, you know, assuming for the sake of argument that they're 50, or there are, there are a lot of them. And we say, you got to take down all of the crosses. What message does that send? When people see that on TV, they see crosses all over the country being knocked down. Well, I don't think you're on it that they need to be knocked down at all. In fact, our preferred remedy, I think, is the least device in, you know, outcome of this case, which is to move it to private land. Now, I know that- All right, take, move, move to take it down, but they're, they're taken down. One way or the other. What message is that? Well, you're also- But is that, is that consistent with the establishment clause? You're on a with respect. I think you're forgetting the third option, which is transferring the underlying property, which this court sanctioned in Bono, as well as the Ninth Circuit sanctioning in the- Let's just take that- We're fighting the hypothetical council

. I think there is a difference between lemon and the reasonable observer. The reasonable observer is an overlay that comes from Justice O'Connor, who's trying to acknowledge and reconcile the complexity of the cases. And I think the reasonable observer is one that- But if you don't find it useful in this case, and you don't want the court to apply it in this case, what about all those poor court of appeals judges who are left still with confusion? We haven't overruled it, but we never use it anymore, except for when we might have 25 years ago. And I think a majority of this court, they'll never at the same time, has advocated for lemon's dismissal. So what do I mean? Is it really fair on the lower court judges struggling to apply this court's dictates if we don't provide an answer on lemon? On the contrary, Your Honor, I think that lemon is very useful. I think when you heard the arguments earlier today, they talked about context, they talked about purpose, they talked about effect. That's the crux of lemon. I don't think that- But how can it be useful when we haven't used it in the most important cases that are on point here? Cases like Town of Greece, it's not used. Van Oorden, Marsh-V-Chamberts. Those are the cases that are on point. They just go back 40 years, and we haven't used the test, and to justice courts, such as Point, the lower courts need some clarity about that. If the test isn't being used, that would suggest that the test doesn't work for this context. Your Honor, I would submit that the court really hasn't had the proper opportunity to apply lemon since Van Oorden, although remember that Van Oorden was decided- Well, Town of Greece was certainly a case, and that's about prayer before a legislative meeting. Well, Town of Greece was- was extending Marsh, which had a jettison lemon, but there's- But the court comes back to saying in, for instance, Trump versus Hawaii, that reiterating the large- the Larson test, which is that, you know, the clearest command of the establishment clause is one denomination can't be preferred to another. And that case relies on lemon. But more importantly, I think that, like I said, I think everyone agrees that purpose and effect our critical inquiries under the establishment clause, they long predated lemon. I think there was something like 14 cases pre-lemon that were purpose and effect cases. Lemon just enshrined those out of the third from Waltz about the hanglement. I think you alluded to this earlier, but I wanted to ask it so I'm clear. The distinction between the 10 commandments and the cross. Is- is too full? One is that it has this dual meaning as, you know, a symbol of law. And so when it's conveyed, say, for instance, you know, alongside, you know, Moses with 18 other lawmakers, the clear effect is, or impression is this is a law symbol. When it's displayed in isolation, or is for one denomination, I think Justice Spulia had a lot of good points about this and his McCreary descent about how he perceived the 10 commandments as being for embrace by Judaism, Islam, and Christianity. But for instance, if it was just the Christian version, which I'm not sure what that looks like, but assuming such could be the case, that might be a problem. Well, the reason why we say the Court doesn't need to reach lemon in this case is because there's a, there's an easier route, and that is the notion of one religion over another can't be preferred. Well, along those lines, would it be a violation of the establishment clause for the state to promote secularism or humanism as opposed to religion? Humanism, yes. If the government decided to put up a giant happy humanist symbol, that's our, it's like this man with little hands, if they decided to replace the cross with the happy humanist, 40 feet tall, and they said, this is the humanist monument, I think that would be a problem. Well, let me take you back to Justice Breyer's question, which is an interesting question to me, and your response was, he's wrong on the numbers, but I don't know, I've got pictures of lots of crosses that are on public land. So, you know, assuming for the sake of argument that they're 50, or there are, there are a lot of them. And we say, you got to take down all of the crosses. What message does that send? When people see that on TV, they see crosses all over the country being knocked down. Well, I don't think you're on it that they need to be knocked down at all. In fact, our preferred remedy, I think, is the least device in, you know, outcome of this case, which is to move it to private land. Now, I know that- All right, take, move, move to take it down, but they're, they're taken down. One way or the other. What message is that? Well, you're also- But is that, is that consistent with the establishment clause? You're on a with respect. I think you're forgetting the third option, which is transferring the underlying property, which this court sanctioned in Bono, as well as the Ninth Circuit sanctioning in the- Let's just take that- We're fighting the hypothetical council. Okay. Now, I love doing that too. Yeah. But let's just stick with the hypothetical. Of course. You can't transfer it, you can't move it, you have to tear it down. Roadside crosses along public highways, for example. Those are many in some places they've been ruled to be unconstitutional, including in my old court. That's right. Because they endorse religion, proselytize. So, back to- Yes. Justice Alito's question, if you could answer it, I'd be grateful that would help me. Yes. I mean, I think that the message, again, just want to say one fourth option, which is creating an open form, something like town of Greece. But with respect to bulldozing, you say 50 crosses. I mean, certainly people will get the message that you can't prefer Christianity. But this court has always rejected the idea that restoring the government to a place of neutrality is hostile to religion. In fact, I think that argument cuts directly against their argument that says this isn't a religious symbol. To say that it would be so hostile to religion, to move it, to private land, to transfer the land underneath it, I think really damages their argument in a way that, you know- It's not just an argument. It's partly guidance, I don't know if we can. It's a tough area. Okay. So, I'm interested in your reaction, which, you know, Justice Alito mentions it. I did, and I didn't hear an answer. With respect to- Well, I think the hypothetical is so difficult because I don't believe- It's not a hypothetical. Okay. I'm saying a very good book, the law and its compass, Lord Radcliffe, all our liberties come from freedom of religion. You have your religion, I have mine, and we're not going to kill each other. Okay. So we say, history counts. Now, what he raises a problem. So what about saying, past is past. If you go back 93 years, but no more, we're now 54 religions. We're now everything unto the Sun. And people will take offense. Now, how do I do that? Is that sensible? Is it ridiculous? What do you think? Well, I think that there are ways to display a historical cross in a way that isn't the government currently being the mouthpiece for that sectarian speech. The 9-11 cross that Petitioner speak of is a perfect example

. Okay. Now, I love doing that too. Yeah. But let's just stick with the hypothetical. Of course. You can't transfer it, you can't move it, you have to tear it down. Roadside crosses along public highways, for example. Those are many in some places they've been ruled to be unconstitutional, including in my old court. That's right. Because they endorse religion, proselytize. So, back to- Yes. Justice Alito's question, if you could answer it, I'd be grateful that would help me. Yes. I mean, I think that the message, again, just want to say one fourth option, which is creating an open form, something like town of Greece. But with respect to bulldozing, you say 50 crosses. I mean, certainly people will get the message that you can't prefer Christianity. But this court has always rejected the idea that restoring the government to a place of neutrality is hostile to religion. In fact, I think that argument cuts directly against their argument that says this isn't a religious symbol. To say that it would be so hostile to religion, to move it, to private land, to transfer the land underneath it, I think really damages their argument in a way that, you know- It's not just an argument. It's partly guidance, I don't know if we can. It's a tough area. Okay. So, I'm interested in your reaction, which, you know, Justice Alito mentions it. I did, and I didn't hear an answer. With respect to- Well, I think the hypothetical is so difficult because I don't believe- It's not a hypothetical. Okay. I'm saying a very good book, the law and its compass, Lord Radcliffe, all our liberties come from freedom of religion. You have your religion, I have mine, and we're not going to kill each other. Okay. So we say, history counts. Now, what he raises a problem. So what about saying, past is past. If you go back 93 years, but no more, we're now 54 religions. We're now everything unto the Sun. And people will take offense. Now, how do I do that? Is that sensible? Is it ridiculous? What do you think? Well, I think that there are ways to display a historical cross in a way that isn't the government currently being the mouthpiece for that sectarian speech. The 9-11 cross that Petitioner speak of is a perfect example. It sits in an exhibit panel, along with other pieces of rubble and an explanatory plaque about how it came to be. I think that if this were not being actively used by the town as an annual war memorial that every year, after year, the town is saying, this is how we honor our veterans, this giant cross. That's a constant message. It's not a historical artifact. What if other cities replicated the 9-11 cross? It's a different world. It's a different time. The time history has changed. But here's an example of a cross that has very contemporary meaning. And to a lot of people. Would you prohibit cities and states from duplicating that cross on their public memorials to 9-11? So, just so I understand you're saying the commission across that looks like the rubble piece of rubble. And then, you know, I think it depends on how they're displaying it. If it's- Is it to answer that it doesn't exist in splendid isolation? Exactly. It does not exist in isolation. Yes. It's in a- No, it's- My question is, it's a 9-11 memorial. And that's the predominant thing, and there might be some names on it, just like our Bladen's bird cross. Yes, Your Honor. Well, then now it certainly be a problem. That would be a cross that's being displayed as the government's war memorial, not as a piece of artifact that is in an exhibit as a museum, in a museum context. We go back outside of hypotheticals to this case. Yes, Your Honor. Mr. Kachel said that the only way to have a remedy here is to destroy, change the cross or destroy it. He says you can't move it because it'll fall apart, and you can't give it to the Legion because of safety concerns. Do you agree with his position on this? I don't agree. For one, with respect to moving it, we don't have any statements that say, there's one statement in the deposition that said it might be hard to move, but we also have deposition testimony saying that the state has moved large historic houses. So I have a hard time imagining that the house is more difficult to move. There's two world-world-one memorials that are in the center of medians. The reality is that- I do understand also that the cross is falling apart and has to be fixed anyway. So whether it's fixed in a move or fixed in place and situal is irrelevant, it still has to be fixed. That's right, exactly. And I think that they're ignoring the key problem that their own experts have warned them about, which is that the current location is causing its demise. And that's why I say that I think our preferred remedy, which is moving it somewhere else, is the best situation for the cross. It can be placed in a place where people don't have to risk their lives across the street. They can actually come pay their respects. They can do so maybe a little bit more privacy. May I go back to the question that's been underlying some of my colleagues' points and points you've been trying to make? It is contextual

. It sits in an exhibit panel, along with other pieces of rubble and an explanatory plaque about how it came to be. I think that if this were not being actively used by the town as an annual war memorial that every year, after year, the town is saying, this is how we honor our veterans, this giant cross. That's a constant message. It's not a historical artifact. What if other cities replicated the 9-11 cross? It's a different world. It's a different time. The time history has changed. But here's an example of a cross that has very contemporary meaning. And to a lot of people. Would you prohibit cities and states from duplicating that cross on their public memorials to 9-11? So, just so I understand you're saying the commission across that looks like the rubble piece of rubble. And then, you know, I think it depends on how they're displaying it. If it's- Is it to answer that it doesn't exist in splendid isolation? Exactly. It does not exist in isolation. Yes. It's in a- No, it's- My question is, it's a 9-11 memorial. And that's the predominant thing, and there might be some names on it, just like our Bladen's bird cross. Yes, Your Honor. Well, then now it certainly be a problem. That would be a cross that's being displayed as the government's war memorial, not as a piece of artifact that is in an exhibit as a museum, in a museum context. We go back outside of hypotheticals to this case. Yes, Your Honor. Mr. Kachel said that the only way to have a remedy here is to destroy, change the cross or destroy it. He says you can't move it because it'll fall apart, and you can't give it to the Legion because of safety concerns. Do you agree with his position on this? I don't agree. For one, with respect to moving it, we don't have any statements that say, there's one statement in the deposition that said it might be hard to move, but we also have deposition testimony saying that the state has moved large historic houses. So I have a hard time imagining that the house is more difficult to move. There's two world-world-one memorials that are in the center of medians. The reality is that- I do understand also that the cross is falling apart and has to be fixed anyway. So whether it's fixed in a move or fixed in place and situal is irrelevant, it still has to be fixed. That's right, exactly. And I think that they're ignoring the key problem that their own experts have warned them about, which is that the current location is causing its demise. And that's why I say that I think our preferred remedy, which is moving it somewhere else, is the best situation for the cross. It can be placed in a place where people don't have to risk their lives across the street. They can actually come pay their respects. They can do so maybe a little bit more privacy. May I go back to the question that's been underlying some of my colleagues' points and points you've been trying to make? It is contextual. The endorsement test is always contextual. And according to you, contextually, the 50 crosses that Justice Alito and Briar are worried about, you don't think it's 50. You still think it may be only 10 or 20. So I accept that. Can we, given the nature of the right at issue, given that the other side concedes that there's extreme proselysation that there is, and there has to be, because the first amendment, there has to be de facto coercion to make any sense of the establishment clause, and defining that is always going to involve context. You are giving up the reasonable observer test. You are talking about an objective factors test. Could you go into that a little bit more? Yes, Your Honor. I think part one of our brief details those factors. And I think all the factors relate to the government's impromotor. So we, once you've accepted that we have a symbol that only honors one religion, because I see it as sort of two prongs. You're testing how, you know, is this a sectarian symbol, does it, you know, prefer one religion to another, and then if so, is it the government putting its hands on it? I'd say the Arlington crosses, it's not, because one's donated by Canada. It's pursuant to this, like I said, statute that allows anyone to put them up. So the factors relate to how much government support is there. When you see it in the, you know, the size of it can matter, and so far as it says, how enthusiastic the city is about it. If you had a 90-foot cross and a two-foot-starved David, it says, we really like Christians. We're okay with, with Jews, you know, and so I think the size, the placement of it, obviously, the most prominent parcel of land, the more prominent is the more begs the question, why is it there? Why did the government allow this? Well, I was just going to say, if I were, once was, a lower court judge, and I get that type of analysis, I'm just going to throw my hands up. Those are 20 different facts, how big is it, where, you know, locate, and maybe that's the best we can do. But do you have, like, something more concise about the test you would apply beyond looking at all the contextual factors and history and all that? I mean, I think it's very difficult, and I think that's why the court hasn't come up with that one, you know, singular test, because the cases are complex, that's the establishment clause. And I think it actually helps us, you know, deal with each cross, that's why it's easy to say, you don't have to tear down any other crosses after this. Each one is evaluated with its specific facts, and I know that that is not the best answer you want to hear, but the reality is, no one has come up with a better test than lemon. We don't need the reason we'll observe her when we can look at facts. So you just said, no other cross has to be torn down, just this one. Would you like us to write that in the opinion? I mean, with respect, this court has done that. I mean, in its cases, it says, you know, we're not deciding anything more. Well, it was a perfect example. I don't. Well, I would say we're going to write an opinion, and we say this cross is particularly bad. This one has to be moved, torn down, transferred so forth, but every other cross is fine. I don't know why. I would just say. No, you're on us. No, what I said. I miss some of those. The cases are ill-suited for sweeping pronouncements and categorical rules. So when the court says that it says, you know, not every cross is going to be torn down, not every cross is going to be held upheld. And I think that's an appropriate way to leave room for exceptions

. The endorsement test is always contextual. And according to you, contextually, the 50 crosses that Justice Alito and Briar are worried about, you don't think it's 50. You still think it may be only 10 or 20. So I accept that. Can we, given the nature of the right at issue, given that the other side concedes that there's extreme proselysation that there is, and there has to be, because the first amendment, there has to be de facto coercion to make any sense of the establishment clause, and defining that is always going to involve context. You are giving up the reasonable observer test. You are talking about an objective factors test. Could you go into that a little bit more? Yes, Your Honor. I think part one of our brief details those factors. And I think all the factors relate to the government's impromotor. So we, once you've accepted that we have a symbol that only honors one religion, because I see it as sort of two prongs. You're testing how, you know, is this a sectarian symbol, does it, you know, prefer one religion to another, and then if so, is it the government putting its hands on it? I'd say the Arlington crosses, it's not, because one's donated by Canada. It's pursuant to this, like I said, statute that allows anyone to put them up. So the factors relate to how much government support is there. When you see it in the, you know, the size of it can matter, and so far as it says, how enthusiastic the city is about it. If you had a 90-foot cross and a two-foot-starved David, it says, we really like Christians. We're okay with, with Jews, you know, and so I think the size, the placement of it, obviously, the most prominent parcel of land, the more prominent is the more begs the question, why is it there? Why did the government allow this? Well, I was just going to say, if I were, once was, a lower court judge, and I get that type of analysis, I'm just going to throw my hands up. Those are 20 different facts, how big is it, where, you know, locate, and maybe that's the best we can do. But do you have, like, something more concise about the test you would apply beyond looking at all the contextual factors and history and all that? I mean, I think it's very difficult, and I think that's why the court hasn't come up with that one, you know, singular test, because the cases are complex, that's the establishment clause. And I think it actually helps us, you know, deal with each cross, that's why it's easy to say, you don't have to tear down any other crosses after this. Each one is evaluated with its specific facts, and I know that that is not the best answer you want to hear, but the reality is, no one has come up with a better test than lemon. We don't need the reason we'll observe her when we can look at facts. So you just said, no other cross has to be torn down, just this one. Would you like us to write that in the opinion? I mean, with respect, this court has done that. I mean, in its cases, it says, you know, we're not deciding anything more. Well, it was a perfect example. I don't. Well, I would say we're going to write an opinion, and we say this cross is particularly bad. This one has to be moved, torn down, transferred so forth, but every other cross is fine. I don't know why. I would just say. No, you're on us. No, what I said. I miss some of those. The cases are ill-suited for sweeping pronouncements and categorical rules. So when the court says that it says, you know, not every cross is going to be torn down, not every cross is going to be held upheld. And I think that's an appropriate way to leave room for exceptions. Your argument sounds in liberty. You raised an important liberty argument. I'm thinking about a liberty claim. I think the Constitution tilts toward liberty in its structure. And one of the ways it does so is there are lots of avenues for you to the Blayton's Board Council could change its approach here. The Maryland legislature could say no more. The Maryland Constitution, as Judge Sutton would remind us, could, or the Maryland courts could prohibit it. With that in mind, the establishment clause tests reference to historical practice can be thought of a setting of floor, an important one, but there are other ways the Constitution tilts toward liberty and other avenues. How should we think about that or should we think about that at all, or is that irrelevant to us? I mean, liberty is absolutely important. And I think that's where the brief of the Baptist Joint Committee and all the Christian groups, you know, joined saying that a ruling upholding this cross would definitely degrade and damage their free exercise or their religious liberty beliefs with respect to a test, even when in town of Greece, the court talks about not allowing a policy that excludes or discriminates against nonbelievers. And I think in that regard, it actually even goes farther in favor of nonbelievers in Marsh because I believe some justices interpreted Marsh to mean you can disregard atheists. And in town of Greece, the court said no, you can't. I guess my question was in thinking about our role. What is the role of this court in a case like this? Should it matter that we know that the Blayton's Board Council, the state legislature, Maryland, the Maryland Constitution are all there, or is that irrelevant to how we think about this? You have a couple of minutes left. Okay. How how Maryland decides to, I guess I'm just not quite understanding the question, is it? The fact that there are other ways in which the cross, other bodies that can decide the cross is too much. The Maryland, the local council could, the Maryland legislature. And I'm not saying that's the right answer. I'm just saying it's that relevant to how we think about our role in a case like this or not. So it's like the Maryland legislature decides that the cross is universal? No, that the cross should come down. In other words, the Blayton's Board Council could transfer the property of the Maryland legislature. The Maryland state courts, the Maryland court of appeals could decide. The remedy, is that what you're getting? Yes. I mean, I think the remedy is certainly relevant to considering that it doesn't need to be torn down. But I don't know if that plays into the question of is this not true? I think the question is different. I think the question is, do we think that since there are other avenues available that the Constitution doesn't require this floor as a constitutional floor for an establishment close violation? I think that's the question that's being asked. Oh, and then the answer is no, I don't think that that's relevant at all. I mean, the establishment clause is, you know, Trump statutes and so forth, so I think that would be. Yes. So we asked that this Court affirmed. Thank you, Council. Three minutes, Mr. Cotiel. Thank you. Ours is a middle path between my three excellent friends. The easiest way to resolve this case is to say in the wake of World War I, crosses like this one, have an independent secular meaning. As Justice Cavanois said before, this Court's decisions recognize that symbols, including religious symbols, have dual meanings, and you can look to Van Warden for that, or you could just look up

. Your argument sounds in liberty. You raised an important liberty argument. I'm thinking about a liberty claim. I think the Constitution tilts toward liberty in its structure. And one of the ways it does so is there are lots of avenues for you to the Blayton's Board Council could change its approach here. The Maryland legislature could say no more. The Maryland Constitution, as Judge Sutton would remind us, could, or the Maryland courts could prohibit it. With that in mind, the establishment clause tests reference to historical practice can be thought of a setting of floor, an important one, but there are other ways the Constitution tilts toward liberty and other avenues. How should we think about that or should we think about that at all, or is that irrelevant to us? I mean, liberty is absolutely important. And I think that's where the brief of the Baptist Joint Committee and all the Christian groups, you know, joined saying that a ruling upholding this cross would definitely degrade and damage their free exercise or their religious liberty beliefs with respect to a test, even when in town of Greece, the court talks about not allowing a policy that excludes or discriminates against nonbelievers. And I think in that regard, it actually even goes farther in favor of nonbelievers in Marsh because I believe some justices interpreted Marsh to mean you can disregard atheists. And in town of Greece, the court said no, you can't. I guess my question was in thinking about our role. What is the role of this court in a case like this? Should it matter that we know that the Blayton's Board Council, the state legislature, Maryland, the Maryland Constitution are all there, or is that irrelevant to how we think about this? You have a couple of minutes left. Okay. How how Maryland decides to, I guess I'm just not quite understanding the question, is it? The fact that there are other ways in which the cross, other bodies that can decide the cross is too much. The Maryland, the local council could, the Maryland legislature. And I'm not saying that's the right answer. I'm just saying it's that relevant to how we think about our role in a case like this or not. So it's like the Maryland legislature decides that the cross is universal? No, that the cross should come down. In other words, the Blayton's Board Council could transfer the property of the Maryland legislature. The Maryland state courts, the Maryland court of appeals could decide. The remedy, is that what you're getting? Yes. I mean, I think the remedy is certainly relevant to considering that it doesn't need to be torn down. But I don't know if that plays into the question of is this not true? I think the question is different. I think the question is, do we think that since there are other avenues available that the Constitution doesn't require this floor as a constitutional floor for an establishment close violation? I think that's the question that's being asked. Oh, and then the answer is no, I don't think that that's relevant at all. I mean, the establishment clause is, you know, Trump statutes and so forth, so I think that would be. Yes. So we asked that this Court affirmed. Thank you, Council. Three minutes, Mr. Cotiel. Thank you. Ours is a middle path between my three excellent friends. The easiest way to resolve this case is to say in the wake of World War I, crosses like this one, have an independent secular meaning. As Justice Cavanois said before, this Court's decisions recognize that symbols, including religious symbols, have dual meanings, and you can look to Van Warden for that, or you could just look up. And Mr. Cotiel, how do you have a dual meaning, Mr. Cotiel? It is the preeminent symbol of Christianity. People wear crosses as to show their devotion to the Christian faith. We don't disagree with any of that, Justice Ginsburg, our only point at the same one that the Bono plurality made is that crosses, particularly World War I ones, have a second meaning, and that meaning is what makes it constitutional. That's why we disagree with my friends here, because we think that their approach would risk the destruction of this 93-year-old memorial, which, you know, which has that real long tradition going back to the field of land. Mr. Cotiel, there's a call and a discussion about undoing lemon altogether, substituting something like a coercion test, whatever, with or without limits. What position are you taking on behalf of the pushing of? We profoundly disagree. I think it's unnecessary and unwise. It's unnecessary because, as their own briefs say, the best evidence of this is the last pages of each of the briefs by the solicitor General and the Legion. They say the existing tests make this an easy case to save the cross, so it's not presented here. If Justice Gorsuch, you're concerned about lemon. Wait for a case in which it has some bite. Hear every test, whatever test you apply. Well, it's the same result. You're in the same boat, though, saying apply lemon, keep lemon. Keep it around for a rainy day. But please, please, please, do not apply lemon to this case. Well, we're happy with you applying lemon. Our brief says that that would be constitutional. We just think this Court in Van Warden has said you didn't, for passive monuments, starting to serve as court. What if we think it's unconstitutional under lemon? What's your view then? Well, I think it would be very impossible for reasons that, for reasons our brief explains, to find it. What if it's unconstitutional under lemon? Yeah. The other side so argues. I'd appreciate it to answer that question. Yeah, so I mean, if it's unconstitutional, then I think we're going to have a discussion. And we would say, you know, you should take a look at lemon because then it would be necessarily presented. Right. But we think that you'd have to do so much work to get there, Justice Cavanole, that it would be a distortion of lemon. And my friends say that there are, you know, disagreements in the lower courts. There are certain petition outlines, the disagreements in the lower courts. They're largely on crosses. Our test resolves that. It resolves the objective observer disputes and resolves the longitivity question of which there's a circuit split. But to take this case and go further, particularly because, you know, as the chief Justice said, they're selling you some clean test. But in the end, when, you know, when push comes to shove, they have indirect coercion, proselysation, you know, and all these other things, who knows what those mean

. The one thing we do know it means is that it's going to permit crosses like the Lake County Cross with Jesus nailed to the center of it in public parks. And that, to me, is a radical change in the law. Thank you, counsel. The case is submitted